Brooklyn Appellate Court Finds Possibility that Hot Coffee was ‘Unreasonably Dangerous’

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McDonald’s could be in hot water again for its coffee temperatures. AP Photo/Keith Srakocic, File

A panel of Brooklyn judges has unanimously ruled that facts exist to allow a trial against a Brooklyn McDonald’s for serving too-hot coffee that allegedly burned a customer.

In a recent decision, the Appellate Division, Second Department, partially dismissed a summary judgment order in favor of a plaintiff who slipped and fell in a McDonald’s located at 82 Court St. in Brooklyn Heights.

According to court documents, Boris Khanimov ordered a coffee from the fast-food restaurant. At some point, Khanimov alleges he slipped and fell inside the store, spilling hot coffee and burning his upper body.  Khanimov filed suit against the larger McDonald’s Corporation as well as the 82 Court St. franchisee. A Brooklyn Supreme Court justice dismissed Khanimov’s suit in its entirety, prompting the burned plaintiff to appeal to the higher court.

“This is not the first McDonald’s case of this nature,” Brooklyn attorney Gary Zucker told the Eagle. In 1994, 79-year-old Stella Liebeck won a civil case against the giant chain on the grounds that the coffee was dangerously hot. Liebeck showed that McDonald’s had a policy of keeping its coffee between 180-190 degrees Fahrenheit — a beverage at that temperature, if it touched the skin, would cause third-degree burns.

Coffee practices have changed since the Liebeck case. McDonald’s cups now come with a warning, “Caution Handle with Care I’m Hot,” and companies are developing disposable cups that are cool to the touch while containing hot beverages — neither of which would prevent burns if spilled.

It is unclear, however, whether serving practices have drastically changed.

“The safety of my customers is very important to me,” said McDonald’s restaurant owner Richard LaRose. “I was pleased with the initial court’s decision and am optimistic that we will prevail again on the narrow issue left in this case.  As this is still a pending legal matter, I cannot comment further at this time.”

In an interview with The New York Times, a Starbucks Coffee barista noted, “We brew it at 200 degrees.”

“We let it sit for a half-hour,” she continued, “so it is about 170 or 180 when we serve it.”

In the Brooklyn case, the appellate court explained that a beverage is served too hot when it is “unreasonably dangerous for its intended use.”

The burden was on 82 Court St. to provide evidence showing that it served its coffee at a reasonable temperature.

“82 Court produced no competent evidence to establish that the coffee served to the plaintiff on the day of the accident was within the range that would normally be expected by a typical consumer of coffee,” the court found.

Because of 82 Court St.’s failure to establish, as a matter of law, that its served coffee was not unreasonably hot, the appellate court did not address whether there was an issue of fact as to “whether the coffee was beyond reasonably expected limits.”

“The [1994] McDonald’s case is one that tort reformists always point to,” Zucker noted. “I would have assumed that there would have been discovery,” the Brooklyn attorney said, expressing confusion as to why 82 Court St. appeared not to produce sufficient proof to support its claim.

“It’s the same issue,” Zucker continued. “Everyone agreed in the first McDonald’s case that if the coffee is above the certain temperature it presents a degree of burns.”

The appellate court did not focus its attention on the larger McDonald’s corporation, using evidencing that the suit against the company was dismissed and maintained only against 82 Court St.

The Brooklyn Heights location was represented by the Law Office of Charles Siegel and attorney Stuart Apploff appeared for the defendant. Apploff has since retired from the firm, and the Brooklyn Daily Eagle was informed by Phillip Menna, the attorney now assigned to the case, that there was no comment from the defendant’s as to its legal arguments.

“I’m somewhat disappointed that they dismissed against McDonald’s because it was their specification [of temperature] the franchise was following,” Emeka Nwokoro, Khanimov’s attorney, told the New York Daily News.

“Everybody knows and agrees that it’s dangerous to serve coffee that’s too hot,” Zucker added. “To the average person in the street, that sounds ridiculous, but the fact of the matter is that when coffee is too hot it is dangerous.”

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